B-126356, MARCH 29, 1956, 35 COMP. GEN. 527

B-126356: Mar 29, 1956

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1940 - MILITARY SERVICE SUSPENDING OPERATION OF STATUTE - TEMPORARY SERVICE IN THE COAST GUARD RESERVE CIVIL SERVICE EMPLOYEES WHO WERE TEMPORARILY ENROLLED IN THE COAST GUARD RESERVE DURING WORLD WAR II. YOUR CLAIM ORIGINALLY WAS RECEIVED IN OUR OFFICE JULY 28. OUR OFFICE IS PRECLUDED FROM CONSIDERING ANY CLAIM UNLESS RECEIVED HERE WITHIN TEN YEARS AFTER THE DATE IT FIRST ACCRUED. WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. FOR THE PURPOSE OF THAT ACT PEACE WAS ESTABLISHED JULY 25. IT IS ASSUMED THAT YOU RELY UPON SECTION 205 OF THE LATTER STATUTE IN PRESSING A CLAIM WHICH OTHERWISE WOULD BE BARRED BY THE ACT OF OCTOBER 9. IS WHETHER YOU WERE A "PERSON IN MILITARY SERVICE. YOU WERE A CIVIL SERVICE EMPLOYEE WITH THE BUREAU OF MARINE INSPECTION AND NAVIGATION.

B-126356, MARCH 29, 1956, 35 COMP. GEN. 527

STATUTES OF LIMITATIONS - CLAIMS BARRED BY THE ACT OF OCTOBER 9, 1940 - MILITARY SERVICE SUSPENDING OPERATION OF STATUTE - TEMPORARY SERVICE IN THE COAST GUARD RESERVE CIVIL SERVICE EMPLOYEES WHO WERE TEMPORARILY ENROLLED IN THE COAST GUARD RESERVE DURING WORLD WAR II, BUT WHO RECEIVED COMPENSATION AND BENEFITS AS CIVILIAN EMPLOYEES RATHER THAN PAY AND ALLOWANCES AS MILITARY PERSONNEL, MAY NOT BE REGARDED AS PERSONS IN THE MILITARY SERVICE TO INVOKE SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT WHICH WOULD SUSPEND THE TEN-YEAR STATUTE OF LIMITATIONS IN THE ACT OF OCTOBER 9, 1940, FOR PRESENTATION OF OVERTIME COMPENSATION CLAIMS.

TO DWIGHT W. MCLELLAN, MARCH 29, 1956:

THERE HAS BEEN REFERRED TO OUR OFFICE YOUR RECENT LETTER TO THE COMMANDANT, UNITED STATES COAST GUARD, RELATIVE TO YOUR CLAIM UNDER THE ACT OF JUNE 28, 1940 (54 STAT. 678), 50 U.S.C. APP. 1151, FOR ADDITIONAL COMPENSATION FOR OVERTIME SERVICES PERFORMED MARCH 7 TO NOVEMBER 29, 1942, WHILE EMPLOYED AS A LOCAL INSPECTOR OF HULLS, MIAMI, FLORIDA, BUREAU OF MARINE INSPECTION AND NAVIGATION, UNITED STATES COAST GUARD.

YOUR CLAIM ORIGINALLY WAS RECEIVED IN OUR OFFICE JULY 28, 1955, MORE THAN TEN YEARS AFTER ITS ACCRUAL. BY AN ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, OUR OFFICE IS PRECLUDED FROM CONSIDERING ANY CLAIM UNLESS RECEIVED HERE WITHIN TEN YEARS AFTER THE DATE IT FIRST ACCRUED, OR, IF WAR INTERVENES, WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. FOR THE PURPOSE OF THAT ACT PEACE WAS ESTABLISHED JULY 25, 1947. JOINT RESOLUTION, JULY 25, 1947, 61 STAT. 451. HOWEVER, SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940 (50 U.S.C. APP. 525) PROVIDES THAT THE ,PERIOD OF MILITARY SERVICE" SHALL NOT BE INCLUDED IN COMPUTING ANY PERIOD LIMITED BY ANY LAW FOR THE BRINGING OF ANY ACTION BY OR AGAINST ANY "PERSON IN MILITARY SERVICE.' WHILE YOUR LETTER DOES NOT EXPRESSLY SO STATE, IT IS ASSUMED THAT YOU RELY UPON SECTION 205 OF THE LATTER STATUTE IN PRESSING A CLAIM WHICH OTHERWISE WOULD BE BARRED BY THE ACT OF OCTOBER 9, 1940. THE QUESTION FOR RESOLUTION, THEREFORE, IS WHETHER YOU WERE A "PERSON IN MILITARY SERVICE," WITHIN THE PURVIEW OF SECTION 205 OF THE SOLDIERS' AND SAILORS' RELIEF ACT, AS AMENDED, 56 STAT. 769.

ON FEBRUARY 1, 1943, YOU WERE A CIVIL SERVICE EMPLOYEE WITH THE BUREAU OF MARINE INSPECTION AND NAVIGATION. ON THAT DATE YOU WERE ENROLLED FOR THE DURATION OF THE WAR AS A LIEUTENANT COMMANDER, UNITED STATES COAST GUARD RESERVE (TEMPORARY), WITHOUT MILITARY PAY OR ALLOWANCES. YOUR ENROLLMENT WAS UNDER AUTHORITY OF THE COAST GUARD AUXILIARY AND RESERVE ACT OF 1941, AS AMENDED, WHICH PROVIDED FOR THE ENROLLMENT OF "PERSONS (INCLUDING GOVERNMENT EMPLOYEES WITHOUT PAY OTHER THAN THE COMPENSATION OF THEIR CIVILIAN POSITION).' 14 U.S.C. (1946 ED.) 307. ON NOVEMBER 1, 1946, YOU WERE DISENROLLED AS A TEMPORARY MEMBER OF THE UNITED STATES COAST GUARD RESERVE BECAUSE OF THE SATISFACTORY COMPLETION OF ASSIGNED DUTY. YOUR DISENROLLMENT DESCRIBES THE TYPE OF DUTY PERFORMED BY YOU WHILE ENROLLED AS THAT OF A " COAST GUARD CIVIL SERVICE EMPLOYEE, WITHOUT MILITARY PAY.'

CIVIL SERVICE EMPLOYEES OF THE COAST GUARD, TEMPORARILY ENROLLED IN THE COAST GUARD RESERVE WITHOUT MILITARY PAY OR ALLOWANCES, CONTINUED TO BE SUBJECT TO CALL UNDER THE SELECTIVE TRAINING AND SERVICE ACT, OR TO ACTIVE MILITARY DUTY BY OTHER MILITARY RESERVE ORGANIZATIONS OF WHICH THEY WERE MEMBERS. DURING THE PERIOD OF THEIR ENROLLMENT THEY CONTINUED TO PERFORM THE DUTIES OF THEIR CIVILIAN POSITIONS. THEY RECEIVED ONLY THE COMPENSATION OF THOSE POSITIONS, WITH DEDUCTIONS FOR CIVIL SERVICE RETIREMENT, AND WERE SUBJECT TO CIVIL SERVICE REGULATIONS AS TO ANNUAL AND SICK LEAVE. IF THEY WERE INJURED OR KILLED THEY RECEIVED BENEFITS AS CIVILIAN EMPLOYEES OF THE UNITED STATES.

WHILE CIVIL SERVICE EMPLOYEES OF THE COAST GUARD TEMPORARILY ENROLLED IN THE RESERVE HAD A MILITARY STATUS, THEIR MILITARY STATUS WAS SO LIMITED THAT THEY RETAINED THEIR STATUS AS CIVIL SERVICE EMPLOYEES. THEIR ENROLLMENT WAS AN ADMINISTRATIVE EXPEDIENT, AND THEY WERE GIVEN ONLY THAT MILITARY STATUS WHICH WAS SUFFICIENT TO ENABLE THEM EFFECTIVELY TO CARRY OUT THEIR DUTIES. SEE COMMISSIONER V. CONNELLY, 338 U.S. 258.

IN MITCHELL V. COHEN, 333 U.S. 411, THE SUPREME COURT HAD BEFORE IT THE QUESTION WHETHER ONE EMPLOYED IN A DEPARTMENT OF THE FEDERAL GOVERNMENT AS A CIVIL SERVICE EMPLOYEE WHO WAS ENROLLED TEMPORARILY IN THE VOLUNTEER PORT SECURITY FORCE--- ONE OF THE SEVERAL CLASSIFICATIONS OF THE TEMPORARY COAST GUARD RESERVE--- WAS AN EX-SERVICEMAN WITHIN THE MEANING OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 851. THE ANSWER WAS IN THE NEGATIVE, THE COURT CONCLUDING THAT THE PURPOSE OF THE ACT, AS DISCLOSED BY ITS LEGISLATIVE HISTORY, IS TO ASSIST THOSE VETERANS OR EX-SERVICEMEN WHO HAD BEEN COMPLETELY DIVORCED FROM THEIR CIVILIAN EMPLOYMENT BY REASON OF THEIR FULL-TIME SERVICE WITH THE ARMED FORCES. COMPARE OUR DECISION OF AUGUST 4, 1949, 29 COMP. GEN. 59.

BY ANALOGY TO THE COHEN CASE AND AIDED BY THE LEGISLATIVE HISTORY OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, WE FIND THAT THE OVERSHADOWING PURPOSE OF THAT ACT IS TO PREVENT HARASSMENT OR INJURY IN THEIR CIVILIAN AFFAIRS OF PERSONS FULLY INTEGRATED INTO THE ARMED FORCES. IN REPORT NO. 3001 OF THE HOUSE OF REPRESENTATIVES COMMITTEE ON MILITARY AFFAIRS RELATIVE TO THE SOLDIERS' AND SAILORS' CIVIL RELIEF BILL, H.R. 10338, SUBSTANTIALLY IDENTICAL TO THE SENATE BILL, S. 4270, WHICH WAS ENACTED, IT WAS STATED: "IN SHORT, THE METHOD OF THE SOLDIERS' AND SAILORS' RELIEF ACT CONSISTS MAINLY IN SUSPENDING PROCEEDINGS AND TRANSACTIONS DURING THE SOLDIER'S OR SAILOR'S ABSENCE SO THAT HE MIGHT HAVE AN OPPORTUNITY WHEN HE RETURNS TO BE HEARD AND TO TAKE MEASURES TO PROTECT HIS INTERESTS.' THERE IS NO INDICATION OF AN INTENT TO EXTEND THE BENEFITS OF THE ACT TO THOSE WHOSE NORMAL PURSUITS IN CIVILIAN LIFE AND EMPLOYMENT WERE NOT SUBJECT TO DISRUPTION BY VIRTUE OF THEIR MILITARY STATUS, AND WE ARE NOT WARRANTED IN SO EXTENDING IT. SINCE ENROLLMENT AS AN OFFICER OF YOUR CLASSIFICATION IN THE TEMPORARY COAST GUARD RESERVE COULD NOT OPERATE TO INTERFERE WITH YOUR ORDINARY FREEDOM OF ACTION TO ASSERT OR DEFEND AGAINST ACTIONS IN OUR COURTS OR BEFORE THE DEPARTMENTS WE MUST CONCLUDE THAT YOU WERE NOT A "PERSON IN THE MILITARY SERVICE" WITHIN THE CONTEMPLATION OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT SO AS TO BE ENTITLED TO THE BENEFITS OF SECTION 205.

CONSEQUENTLY, YOUR CLAIM FOR OVERTIME COMPENSATION NOT RECEIVED HERE WITHIN TEN YEARS AFTER ITS ACCRUAL AS REQUIRED BY THE ACT OF OCTOBER 9, 1940, MUST BE DISMISSED.